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Judicial Appointments Conundrum Post-NJAC Verdict

Importance for Exams

Only from a mains perspective. Important to understand – MOP, Security Clause, RTI, JSA Bill.

The News

In October 2005, the SC bench in a majority of 4:1 rejected the NJAC Act and 99th Constitutional Amendment and Collegium was brought back in. The grounds stated were the following :
1. Primacy of the judiciary was not ensured which was mandatory for independence of Judiciary
2. Active role of executive was not desirable as the govt. was the litigant more than 60% of the times.
3. Other minor issues on eminent personality, etc.

FM Arun Jaitley criticized the ruling as “democracy becoming tyranny of the unelected”. To which former CJI Justice Lodha replied stating when the will of the people through elected representatives is opposed to the constitution, the judiciary ought to be governed by the latter.
Interestingly, one positive development out of this chaos has been judiciary’s acceptance of the flaws in the collegium system and its willingness to work with the executive to evolve it.

In this regard, the SC asked the Govt. to work on a revised MoP addressing the following issues of the Collegium –
1. Opaque working
2. Lack of objectivity
3. Lack of accountability
4. Missing broad-based consultations.

The revised MoP proposed the followingNominations – Proposal is to setup a Technical Committee. This committee will accept nominations and hold wider consultations to select the best candidates.Eligibility – a) The prime criteria will be Seniority along with b) Merit and integrity. In case a senior Chief Justice being overlooked for elevation reasons for the same be recorded in writing.Permanent Secretariat : maintaining records of high court judges, scheduling meetings of the SC Collegium, receiving recommendations as well as complaints in matters related to appointments, scrutinize data relating to prospective appointees, and lays down a judicial mechanism for redress of complaints against judges.

Points of contention
Most of the points mentioned above stand sorted except for the Security Clause.Security Clause : The clause under which Govt will have powers to reject any candidate recommended by the collegium on grounds of public interest and national security. Revised draft proposes that the government will communicate to the collegium the reasons for rejecting any name recommended by it.

September 14, 2016

Approved strength of judges enough to end backlog: Law panel head

Context: The ongoing Judicial appointments issue in the country

Law Commission of India Chairman and former Supreme Court judge Justice Balbir Singh Chauhan said working judges, and not increasing sanctioned strength of judges, may be a solution to modern-day demands of judicial workload

The workload is caused by the heightened legal awareness among the public about their liberties

Steps should be taken to fill the sanctioned strength rather than increase the number of judges over and above the current sanctioned strength to solve pendency

It’s a completely different view from the highest judiciary’s call for more judges to trim pendency

Background: His view comes at a time when SC has directed the Law Commission to file a report within a year on whether it is permissible to rid the apex court of routine appeals crowding the court, to help it focus on cases of national and public interest

Also at a time when CJI Thakur has called for over 70,000 more judges to be appointed to courts all over the country to clear the backlog

September 5, 2016

My fight is for transparency, says Justice Chelameswar

Context: His decision to skip the meetings of the Supreme Court Collegium till the highest judiciary ushers in transparency

Why? Solely for the cause of transparency and was not fighting for any personal gain

Justice Chelameshwar: The judiciary should evolve a procedure for bringing in transparency in appointments after having rejected both the government’s arguments and rescinded a parliamentary law on NJAC

His dissent is as historic as it is revealing of the Collegium’s opacity

August 20, 2016

Didn’t stall judicial appointments: Govt

NJAC: For almost a year-and-a-half, the entire appointments process went into a deep freeze mode and vacancies piled up as litigation challenging the National Judicial Appointments Commission (NJAC) laws dragged on in the Supreme Court

Memorandum of Procedure: The MoP has never delayed the judicial appointments process as has been proved by statistics

Stats: 52 judicial appointments to various High Courts have already been made till date & 10 additional High Court judges have been confirmed

Also, 4 Supreme Court judges have been appointed and nine High Court Chief Justices have been confirmed

August 13, 2016

Supreme Court pulls up Centre for sitting on Collegium list

News: In its sharpest-ever attack in open court on the Govt, SC asked whether the Centre intends to bring the entire judiciary to a grinding halt by sitting on recommendations of the Collegium for appointment and transfer of judges to High Courts across the country

Confrontation ahead? Chief Justice of India T.S. Thakur made it clear to the Centre that the court would not shy away from a confrontation with the government if driven to a corner

Judicial intervention: If matters continued in the same vein, the court would be forced to intervene judicially and call for every file of every recommendation forwarded by the Collegium to the government for clearance

Context: SC was hearing a PIL highlighting the enormous backlog of cases in various courts which has acquired uncontrollable proportions

Background: Chief Justice had made an emotional appeal in the presence of Prime Minister Narendra about the rising burden of judges due to vacancies and pendency

July 5, 2016

Judiciary vs government – background

Ever since the Supreme Court (SC) struck down the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment, the relations between judiciary and government has been sour

As a compromise it was agreed that the government would draft a revised Memorandum of Procedure (MoP), intended for appointment of judges

However, a clause in the revised draft MoP empowering the government to reject the names suggested by the SC Collegium was not acceptable to the judges

The clause on the right to reject a recommendation on grounds of national security gives primacy to the government on appointment of judges

Earlier practice: Government was bound to accept a recommendation by the Collegium (4 senior-most judges of the SC and the CJI) if a recommendation is sent again

The revised MoP further provides that once the Centre has rejected a recommendation it will not be bound to reconsider it even after reiteration by the collegiums